*1 BURNS, Appellant R. Howard
(Defendant Below), Indiana, Appellee
STATE Below). (Plaintiff Indiana.
Supreme Court of Paul, III, Jr., Voyles,
J.J. James H. India- napolis, appellant. Pearson,
Linley Gen., E. Atty. Lisa M. Paunicka, Gen., Deputy Atty. Indianapolis, appellee. DICKSON, Justice. petitions
Defendant Howard R. Burns
following
for transfer
an adverse decision
Burns v. State
in the Court of
(1986), Ind.App.,
Defendant ordered, pre-trial discovery of all witness prosecutor prior repeatedly trial. The insisted that it presented by 1. Another issue because it had no relation to the issues in defendant involved dence holding admissibility today, of a case. Because of our unrelated conviction defendant’s question promoting pros- of an associate of of harmless defendant for we need not address the Appeals correctly titution. The Court that the introduction of such held error and note admitting prohibited that the trial court on retrial. erred in the evi- evidence should *2 discovery may properly deny On court it. An ade- the order. complied with had cross-examination, (1) first witness quate foundation is laid The when: given recorded state she had sought revealed that has witness whose statement during the prosecution authorities examination; (2) ments to A In investigation. a stages of the initial substantially transcription verbatim of jury, of the hearing presence the outside statements made the witness to posr the State prosecutor admitted the probably trial is shown to within the be state tapes, plus recorded these sessed and, (3) prosecution; control of the The witnesses, had inadvert of other but ments relate to matters covered in to the defense. to disclose them ently failed testimony present in the the witness’ the trial for recessed judge The trial then case. defense counsel to day permitted the foundation, laying After this the de- tapes of and to take listen to the 2lh hours re- may fendant move the trial court to notes, prepared to be advised counsel but produce state- quire the State to such continuing cross-examination the by the in cross ments for use morning. the trial reconvened next impeachment of the wit- examination and morning, defense counsel moved the next proper If foundation is the ness. the the violation of for a mistrial due to State’s must the motion and alternative, order, and, in the the directly order the statements turned over tapes the tran for a continuance to have alleg- the to the defendant unless State in for use cross-examination. scribed (a) There are no such statements es: alia, tapes argued, the State inter control of the State. The within the helpful any of material content were devoid hearing on the con- court must conduct a defense, the and that defense counsel to parties of the to resolve flicting claims opportunity review adequate had to issue, (b) necessity for There is a this Moreover, objected to the the State keeping the contents of the statements tapes on the discovery” “further of the confidential, (c) The statement also con- they protected by the grounds that were related to the matters tains matter not that the State work-product privilege, and testimony in covered witness’ interest in non-disclosure had por- to reveal that does not wish tapes contained irrelevant ma because the two cases the state- tion. In the latter investigations, regarding continuing terial directly the not to ments need in other cases. given to the trial should be defendant but reviewing Without concerning the for his decision court tapes particular that “these stated agrees court claim. If the trial State’s product prose- appear to be work (b) (c) then on with the State police in of re- cutor as and the nature motion or may deny defendant’s “subject being utilized. ports,” and were only the rele- the defendant turn over to misleading by the defense for and unfair statement. portion of the vant The trial court denied cross-examination.” (1971), Ind. also, 257 Dillard v. State See continuance, defense counsel’s motion for 387, (“the trial court 282, N.E.2d 393 274 refused to allow counsel to introduce pro- permit pre-trial power to has the pur- impeachment into evidence for laying upon the directed, such statements duction of “re- poses, defense counsel to -type foundation tailored of an Antrobus particular from reference of the frain situation_”) pre-trial fit the tapes....” Cir Citing ex rel. Keaton v. right to discover a A defendant has a Ind., (1985), County 475 Rush of cross- uit Court witness’s statement of 1146, that the contends the State under the rule set N.E.2d examination .forth (1970), akin to “investi 253 Ind. statements were Antrobus v. State concealed notes,” protected thereby were gative N.E.2d 876-77: prosecutor. Keaton product work First, proper lay must the defendant not authorized court was held that a trial or the trial foundation for his motion production copies order of po- verbatim of CRIMINAL PETITION FOR TRANSFER reports timely product lice over work GIVAN, Justice, dissenting. objection prosecuting attorney. I respectfully dissent from majority case, present however, the issue is dis- opinion in this case. The trial denied coverability of recorded witness appellant’s motion for mistrial based ments, police personal officers’ the fact that certain were gative reports. unwilling permit We are not furnished to him. The State had fact *3 of the Keaton expansion work-product ra- permitted appellant to listen to the impair tionale and use of appellant asked for a continuance in statements in accordance with Antrobus. order to make transcripts pre-trial discovery subject While is to the objected ground on the court, sound discretion of the trial once a that there were no material differences be- testifies, any prior witness tween the verbatim state- tape video ments which already ments must be counsel had. made available to the de- fense unless paramount the State asserts addition, argued necessity for confidentiality or inclusion of products were work prosecutor statement, unrelated matter in the pursu- ongoing which involved prostitution related to Antrobus. ant cases. The “work-product” release of this information jeopardize would privilege certainly investigation further grounds for con- those cases. The State demonstrated to cealment once the witness has testified. appellant had in fact Upon assertion of one of the proper received all of the information which was grounds by State, the trial court should pertinent in his case and additional review the statement for decision concern- requested material by appellant contained ing the State’s claims. information that jeopardize would gations in other cases. Under the circum- Because the applied stances, was correct in re- work-product privilege protect prior fusing grant a mistrial or to verbatim statements of a witness who had continuance in the case. examination, State ex rel. Keaton v. Circuit Court because it failed to conduct an in camera Rush County (1985),Ind., 475 N.E.2d review of the statements to determine cited majority, should be followed claims of necessity and the trial court should be affirmed. irrelevancy, this is not a matter which the trial court’s decision resulted PIVARNIK, J., concurs. from the exercise of its By discretion. effectively denying defendant the opportu
nity adequately review, transcribe, and
use the witness’s purposes,
cross-examination rulings
court’s substantially prejudiced de impaired fendant and right to a fair Jeffrey LEWIS, Appellant, Darnell Accordingly, grant transfer, trial. we va cate the decision of the Court of conviction,
reverse the and remand the case Indiana, Appellee. STATE of for a new trial. Supreme Court of Indiana. SHEPARD, C.J., DeBRULER, J.,
concur. GIVAN, J., opinion dissents with PIVARNIK, J.,
which concurs.